In a case where defendant was convicted of burglary and theft, which under the facts were
found by the trial court to be "sexually motivated," application of the Kansas Sex Offender
Registration Act is discussed.

The facts of this case are undisputed. On April 28, 1997, Patterson entered a
Brady plea to one count of burglary, K.S.A. 21-3715, one count of misdemeanor
theft,
K.S.A. 21-3701(a)(1), and one count of misdemeanor possession of marijuana, K.S.A.
1996 Supp. 65-4162. Patterson was arrested on October 16, 1996, when his parole
officer found him to be in possession of pornographic materials which were prohibited
by his probation agreement. He had been previously convicted of burglary, multiple
counts of theft, aggravated assault, and lewd and lascivious conduct. Although the
facts are not completely developed in the record, some of these prior convictions
involved the theft of women's clothing and public masturbation.

At the preliminary hearing, special enforcement officer Maureen Stanton testified
she was called to Patterson's residence on October 16, 1996, by Patterson's parole
officer, Brad Jones. Jones had received a call that Patterson had a minor in his home
at the time. The officers were admitted to Patterson's home by Patterson's roommate
and former girlfriend, Becky Thomas. Thomas consented to a search of the house.
Patterson was found in the basement, where he consented to a search of his
belongings. The officers then found a homemade videotape containing a recording of
Patterson having sex with a young woman. (The woman was first thought to be a
minor, but was later confirmed to be an adult.) Patterson was then arrested, and he
consented to a further search of his belongings. The officers opened a locked cabinet
and found numerous other pornographic materials and 11 items of women's thong
underwear.

Officer Stanton also testified there was a hole in the wall of the basement in
which Patterson resided that led to the basement of the adjoining duplex. Thomas told
the officers she thought the underwear belonged to the next-door neighbor, Christina
Bowman. Bowman stated the underwear belonged to her, and she had noticed several
items of her underwear missing from her home between April and October 1996. She
also stated she had given Patterson and Thomas permission to enter her home without
her presence on two separate occasions, but she never allowed them to disturb or see
her clothing.

After the preliminary hearing, the State gave notice it would seek to have
Patterson's crimes classified as "sexually motivated" under K.S.A. 22-4902(b)(12) in
order to require Patterson to register as a sex offender in the event he was convicted.

Pursuant to a plea agreement, the State concurred with a downward durational
departure sentence of 18 months for all three counts. At sentencing, Patterson
requested that he be granted probation. He was given a downward durational
departure sentence of 18 months for burglary, misdemeanor theft, and misdemeanor
possession of marijuana. He was denied probation. The district court also found:

"The possession of the pornographic materials are indicia of the state of mind of Mr.
Patterson at the time.
There's no question at all that the collection of panties that are normally worn by a member of the
opposite
sex would have a sexual connotation. The only issue is the sort of sexual connotation
contemplated by
the legislature in enacting the statute. The purpose of the statute is to protect people from sexual
predators. That's why the requirement of the reporting is made. I will find under the facts of this
case that
the crime was sexually motivated."

Patterson filed a timely notice of appeal of the denial of his request for probation and
the determination that his crimes were sexually motivated under K.S.A. 22-4901 et
seq.

Patterson argues that this is a simple burglary/theft case and claims the trial
court improperly relied upon evidence occurring after the crimes had been committed in
making the sexual motivation ruling.

This appeal requires the court to construe the meaning of K.S.A. 22-4902(b)(12)
and determine whether Patterson committed a sexually violent crime for which he must
register with the State as a sex offender. This statute is part of the KSORA.

Interpretation of a statute is a question of law, over which this court has unlimited
review. In re Tax Appeal of Boeing Co., 261 Kan. 508, 514, 930 P.2d 1366 (1997).
Furthermore, if we uphold K.S.A. 22-4902(b)(12), we must consider whether the trial
court correctly determined that Patterson's crimes were sexually motivated. This is a
question of fact. Rulings on questions of fact will be upheld on appeal if supported by
substantial competent evidence. See Tucker v. Hugoton Energy Corp., 253 Kan.
373,
377, 855 P.2d 929 (1993).

To ascertain whether Patterson committed a sexually violent crime, we must
interpret the language of K.S.A. 22-4902(b)(12). Under this statute, Patterson is guilty
of a sexually violent crime if he committed "any act which at the time of sentencing
for
the offense has been determined beyond a reasonable doubt to have been sexually
motivated." K.S.A. 22-4902(b)(12). Under the statute, "'sexually motivated' means that
one of the purposes for which the defendant committed the crime was for the
purpose
of the defendant's sexual gratification." K.S.A. 22-4902(b)(12).

The immediate problem in construing this statute is the broad language of the
first sentence. Read literally, it states that any act which a factfinder determines to be
sexually motivated beyond a reasonable doubt is a sexually violent crime. The statute
in its operative part, therefore, appears to define all sexually motivated activity as a
sexually violent crime. The application of a such a rule poses obvious difficulties, and
while Patterson does not assert a constitutional argument against the statute based on
vagueness or overbreadth, we must first determine the scope of K.S.A. 22-4902(b)(12)
before we can evaluate whether there was substantial competent evidence to support
the decision of the trial court that Patterson's crimes were sexually motivated.

Can K.S.A. 22-4902(b)(12), therefore, be rationally construed? It is a general
rule that an appellate court must give effect to the plain and unambiguous language of
a statute without determining in the opinion of the court what the law should be. State
v. Reed, 23 Kan. App. 2d 661, 663, 934 P.2d 157, rev. denied 262 Kan. 968
(1997). It
is also the function of a court "to interpret a statute to give it the effect intended by the
legislature." In re Application of Zivanovic, 261 Kan. 191, 192, 929 P.2d 1377
(1996).
In determining legislative intent, courts are not limited to the mere language of a statute.
Courts can consider the circumstances surrounding the passage of a statute, its
purpose, and the effect the statute may have under the various constructions posed by
a particular case. See State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994).
Moreover, if a statutory provision is vague or unclear, courts must look to related or
surrounding provisions "with a view of reconciling and bringing them into a workable
harmony and giving effect to the entire act if it is reasonably possible to do so." State v.
Le, 260 Kan. 845, 847-48, 926 P.2d 638 (1996).

These canons of statutory construction are to be considered in light of other
cautionary rules. While courts must give effect to legislative intent and the plain
language of a statute, courts may not "'delete vital provisions or supply vital omissions
in a statute. No matter what the legislature may have really intended to do, if it did not
in fact do it, under any reasonable interpretation of the language used, the defect is one
which the legislature alone can correct.'" (Emphasis in original.) Kenyon v. Kansas
Power & Light Co., 254 Kan. 287, 292-93, 864 P.2d 1161 (1993) (quoting
Harris v.
Shanahan, 192 Kan. 183, 196, 387 P.2d 771 [1963]).

The language of K.S.A. 22-4902(b)(12) is ambiguous. The first sentence of the
statute criminalizes all acts which are found beyond a reasonable doubt to be sexually
motivated. The second sentence clarifies the first to some degree, however. It states
that if sexual gratification is the purpose of the underlying crime, then the crime is
sexually motivated. In light of the second sentence, if the word "acts" in the first
sentence means "crimes," then the statute is rather clear--i.e., any crime committed
for
the sexual gratification of the defendant is a sexually violent crime. But if the word
"acts" in the first sentence does not mean "crimes," as Patterson contends, then it
appears that a court must determine if any of the acts committed by the defendant
during the commission of the crime were undertaken for his sexual gratification. Only
then could the crime be called sexually motivated and ultimately sexually violent.

These ambiguities were noted with some concern in State v. Myers, 260 Kan. at
669, 678-81, 923 P.2d 1024 (1996). Writing for the majority, Justice Six stated:
"Although all of the other categories [in K.S.A. 22-4902(b)] are limited to felonies, the
last category could apparently include any 'sexually motivated' act resulting in an
'offense.'" 260 Kan. at 698. Justice Six went on to question the wisdom of requiring
individuals convicted of consensual sex crimes with minors (i.e., 18 year olds with
15
year olds) to register as sex offenders for at least 10 years under a system which allows
unrestricted public access to the registry. 260 Kan. 699. Despite these comments, the
Kansas Supreme Court upheld the constitutionality of the prospective application of
KSORA. 260 Kan. at 701-02.

The Myers court also noted that the KSORA was passed in the wake of the
rape/murder of Stephanie Schmidt by a prior sex offender. The court observed that the
Minutes of the House Committee on the Judiciary for January 26, 1994, show that the
legislature was concerned primarily with public safety when it passed the KSORA. 260
Kan. at 679-80. This concern is evident throughout the legislative history. The minutes
of the same committee on February 25, 1994, page 2, indicate the legislature was
concerned with providing the public with the broadest possible access to information
about sex offenders in their communities.

In light of the legislative history, it is clear that the legislature passed the KSORA
in order to protect Kansas residents from sex offenders who pose a high risk of
reoffense. It is clear from the KSORA that the legislature specifically required all people
convicted of Chapter 21, Article 35 crimes, or crimes of a similar nature, to register as
sex offenders. K.S.A. 22-4902(b)(1)-(10). It is also clear from the legislative history,
and the language of K.S.A. 22-4902(b)(12), that the legislature was concerned with
those offenders who commit crimes not commonly called sex crimes, but which
nevertheless are criminal offenses committed by persons seeking sexual gratification.
Notwithstanding the ambiguous statutory language, it is both reasonable, and
consistent with legislative intent, to conclude that K.S.A. 22-4902(b)(12) defines as
"sexually violent" all crimes committed for the purpose of sexual gratification.

Patterson argues against this conclusion by citing State v. Halstien, 122
Wash.
2d 109, 857 P.2d 270 (1993). In Halstien, the Washington Supreme Court stated in
dicta, while affirming the trial court, that a state sentence enhancement statute which
increased sentences for crimes committed with sexual motivation required a nexus
between the crimes and the sexual gratification. 122 Wash. 2d at 120. The case
involved a paperboy who broke into a customer's house while she was sleeping,
located photographs of the woman, and masturbated over them. When the woman
awoke, the boy left the house with a box of condoms and a vibrator belonging to the
woman. The boy was later convicted of burglary with a special allegation of sexual
motivation pursuant to a juvenile sentence enhancement law for sexually motivated
crimes. See Wash. Rev. Code § 13.40.135 (1996).

Patterson argues he received no sexual gratification from the act of stealing
Bowman's underwear; thus, under the Halstien rationale his act was not sexually
motivated. Patterson also claims that what he did with the underwear after the
crimes
were committed is irrelevant as to whether he committed the crimes with sexual
motivation.

While Halstien did involve a sexual motivation statute, it did not directly
involve a
sex offender registration law. In fact, the Washington Supreme Court refused to rule on
whether the juvenile defendant was required to register under the Washington
registration act because the issue was not ripe until he was released from custody. 122
Wash. 2d at 130. Patterson's case involves the application of a statute designed to
protect the public from criminals who prey on others for their own sexual gratification.
Halstien involved a sentence enhancement provision which was designed to increase
the punishment for sex offenders. Accordingly, the two cases are distinguishable.

In any event, we do not read Halstien to be so narrow as to require the
reversal
of any finding of sexual motivation unless an actual sex act was involved, as is
contended by Patterson.

When the two sentences of K.S.A. 22-4902(b)(12) are read together and in light
of the legislative history, it is not unreasonable to conclude that general crimes
committed for the defendant's immediate or eventual sexual gratification are considered
"sexually violent" under the KSORA. As such, defendants convicted of such crimes
must register as sex offenders under the terms of the statute.

We do have some concern over the possibility that this statute could be
extended beyond reason. For instance, would a defendant fall under the provisions of
the KSORA if he or she stole contraceptives or engaged in disorderly conduct by
shouting sexually explicit words? In the instant case, we are dealing with burglary of a
residence, which is a serious crime in itself, so we are not as concerned with the reach
of the statute here. But we express no opinion on the issue of its applicability to minor,
though arguably "sexually motivated," acts.

The trial court concluded that Patterson's theft of Bowman's underwear while
burglarizing her home was sexually motivated under K.S.A. 22-4902(b)(12), and notified
him that he would be required to register under the KSORA. The court made this
factual finding because Patterson kept the underwear in a locked cabinet containing
pornographic materials. The court also noted Patterson stole only women's underwear,
which carried a "sexual connotation." As discussed above, the record provides
substantial competent evidence with which the trial court could have made these
findings. As such, the trial court's factual findings are affirmed.

We now turn to the issue of whether Patterson is required to give blood and
saliva samples to the State as a result of his conviction.

At sentencing, Patterson was ordered under K.S.A. 1996 Supp. 21-2511 to give
blood and saliva samples to the Kansas Bureau of Investigation. He objected to the
requirement that he register as a sex offender upon his release from State custody, but
he did not specifically address the blood and saliva issue in his objection. On appeal,
he claims K.S.A. 1996 Supp. 21-2511 does not apply to the crimes of theft and burglary
even if sexually motivated; thus, he should not have to comply with the court order.

We note that substantive changes were made to K.S.A. 1996 Supp.
22-4907(b)
in 1997. We address the law in effect at the time Patterson committed his crimes and
was arrested.

An issue not presented to the trial court generally cannot be raised for the first
time on appeal. See State v. Alderson, 260 Kan. 445, 459, 922 P.2d 435 (1996).
Technically, Patterson did not object to the trial court order that he submit blood and
saliva samples. He did, however, object to the requirement that he register as a sex
offender under the KSORA. Because the blood and saliva order was predicated on the
finding of sexual motivation under the KSORA, we find Patterson's objection was timely
as to the blood and saliva requirement as well.

Patterson's argument requires us to construe K.S.A. 1996 Supp. 21-2511 and
K.S.A. 1996 Supp. 22-4907(b)(3). As noted above, interpretation of a statute is a
question of law over which this court has unlimited review. In re Tax Appeal of Boeing
Co., 261 Kan. at 514.

K.S.A. 1996 Supp. 21-2511(a) states in part:

"Any person convicted as an adult . . . because of the commission of an unlawful sexual act
as defined in
subsection (4) of K.S.A. 21-3501, and amendments thereto, or convicted as an adult . . . because
of the
commission of a violation of K.S.A. 21-3401, 21-3402, 21-3510, 21-3511, 21-3516, 21-3602,
21-3603, or 21-3609 . . . shall be required to submit specimens of blood and saliva to the Kansas
bureau of investigation. . .
."

The statute states the blood and saliva samples will be used to compile a DNA
database. K.S.A. 1996 Supp. 21-2511(f). The statute makes no reference to the
crimes of theft or burglary, nor does it refer to crimes not specifically mentioned but that
were committed with sexual motivation.

The trial court erred when it required Patterson to submit DNA exemplars under
K.S.A. 1996 Supp. 21-2511(a) because that statute does not address the crimes for
which he was convicted. However, the court could have ordered his submission of the
DNA material under K.S.A. 1996 Supp. 22-4907(b)(3), which refers to "sex offenders,"
a category under which he falls as a result of the sexually motivated nature of his
crimes. "[A] trial court's decision that reaches the right result will be upheld even
though the court relied on the wrong reason for its decision." Doolin v. State, 24
Kan.
App. 2d 500, 504, 947 P.2d 454 (1997). Accordingly, the trial court's order requiring
Patterson to submit blood and saliva samples is affirmed.